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No, Florida can’t ‘kidnap’ trans kids, but new law may affect custody disputes

PolitiFact | Gov. DeSantis signed a bill broadly prohibiting gender-affirming care for transgender minors.
 
A protester waving a pride flag with the Florida State Seal joined hundreds of people from across the state in a rally and march, Monday, May 1, 2023, in Orlando.
A protester waving a pride flag with the Florida State Seal joined hundreds of people from across the state in a rally and march, Monday, May 1, 2023, in Orlando. [ JOHN RAOUX | AP ]
Published May 31, 2023

Many parents supportive of their transgender children were already concerned about a wave of legislation targeting LGBTQ+ people. Now online rumors about a Florida bill are stoking even more worry.

“If your kid is trans and y’all go to Disney, Florida could kidnap them,” tweeted one user March 9.

“Florida will debate a bill to kidnap trans kids from their parents,” read another tweet from April 22.

These concerns arise from two provisions in Florida SB 254. Broadly, the bill, introduced by state Sen. Clay Yarborough, R-Jacksonville, prohibits gender-affirming care for transgender minors and restricts access for adults.

But the two portions raising kidnapping concerns would alter a law that governs which state should handle interstate custody disputes over a child. The bill passed both chambers of the Florida Legislature, and has been signed by Gov. Ron DeSantis.

Are critics right that this new law would give the Sunshine State permission to take trans kids away from their parents?

The bill does not grant the state unilateral power to “kidnap” or take custody of a child receiving gender-affirming care from a family. The Disney World example would not apply. But the bill does change how custody disputes between parents are resolved, especially when another state issued the original custody order.

But the legislation contains broad and confusing language that has left legal experts divided about its potential impact.

Critics worry that the law may encourage parents to seek emergency refuge in Florida if they disagree with their co-parent’s decision to help a transgender child seek gender-affirming care. The law has been challenged in court by the parents already challenging the Boards of Medicine and Osteopathic Medicine rule prohibiting gender-affirming care for children.

Courts could take “temporary emergency jurisdiction” in interstate custody disputes involving gender-affirming care

One clause stoking fear grants Florida courts the power of “temporary emergency jurisdiction” over children in the state receiving or “threatened with being subjected to” gender-affirming care.

In 1997, the Uniform Law Commission, a nonprofit organization working for the uniformity of state laws, drafted the Uniform Child-Custody Jurisdiction and Enforcement Act. The act, adopted in every state except Massachusetts, outlines how different states determine who is authorized to make a custody decision for a child.

By assigning every child involved in a custody order a “home state,” the act aims to prevent having competing custody orders from different states. Home states are typically where the parents divorced or the first custody order was issued.

That “home state” remains in charge of that case unless another home state is legally established. Generally, if parents want to modify custody orders, they must do so in the child’s home state.

The existing law has a caveat to account for extreme circumstances. In instances of abandonment, mistreatment or abuse, current law says a state other than a child’s home state can claim “temporary emergency jurisdiction,” giving it short-term authority to make custody decisions.

SB 254 adds one more exception to the list: A state can take emergency jurisdiction when a child has been “subjected to or is threatened with being subjected to,” gender-affirming health care in the form of puberty blockers, hormones and in some rare cases, surgeries.

Bernard Perlmutter, a law professor and co-director of the Children & Youth Law Clinic at the University of Miami, argued that this new addition doesn’t meet the same “harm” standard as abandonment, mistreatment or abuse.

“It’s supposed to be very parsimoniously exercised,” Perlmutter said. “You don’t use this to exert sweeping powers over the parents. It has to really be predicated upon actual harm to the child.”

But the temporary jurisdiction’s effect is pretty narrow, experts said: It applies only to custody agreements that originated in states other than Florida. And it enables courts to make custody decisions for children who are receiving trans health care for a designated period of time, but does not dictate what those decisions must be, or favor parents who are denying gender-affirming care for their children.

As soon as a court grants emergency jurisdiction, it must contact the home state court so that state can claim or decline jurisdiction over the child. Law dictates that home state jurisdiction always trumps temporary jurisdiction.

So if a parent takes a child from New York to Florida and requests temporary emergency jurisdiction, New York keeps the final say on custody modifications, unless it declines jurisdiction.

“The bill as written does not give the state of Florida unilateral power … for the state to intervene and take someone’s child into state custody,” said Brandon Wolf, press secretary at Equality Florida, a civil rights organization advocating for LGBTQ+ Floridians.

It also doesn’t alter Florida statutes regarding child welfare or the foster care system, said Simone Chriss, a lawyer and the Director of the Transgender Rights Initiative at the Southern Legal Counsel. Chriss’s firm is suing the state to challenge the bill, and also to challenge the Medicaid exclusion on gender-affirming care.

Could parents use gender-affirming care as a reason to change custody agreements?

SB 254 also amends a section of the Uniform Child-Custody Jurisdiction and Enforcement Act that outlines conditions under which parents can seek a court’s warrant to take physical custody of a child.

Under current law, parents can seek this warrant if the child is likely to be removed from the state or if the child is “likely to imminently suffer serious physical harm.”

The legislation adds gender-affirming care for minors as a condition qualifying as “serious physical harm.”

This provision’s effect remains unclear. PolitiFact spoke to legal experts and a spokesperson for Senate President Kathleen Passidomo, R-Naples, and heard two different interpretations.

Chriss said that because the bill amends only the Uniform Child-Custody Jurisdiction and Enforcement Act, this clause applies only when questions of state jurisdiction or interstate cooperation are at play. Online resources that PolitiFact found support this interpretation.

She also said the warrant can be used only when trying to enforce existing custody decisions, not when modifying or filing for new ones.

Based on this legal interpretation, a parent without a custody decision in their favor could not use the risk of gender-affirming care as a reason to request a change in parental custody.

Katie Betta, the deputy chief of staff for communications in Passidomo’s office, offered a contrary reading. Betta said the law would also apply to Florida custody agreements and would add gender-affirming care as grounds by which a parent or guardian could legally request a change in an existing custody agreement.

“The disapproving parent has to file a petition with the court, and the court decides who will take temporary custody of the child while the dispute between the two parents is being resolved,” Betta wrote in an email to PolitiFact.

Betta said that the law does not change the process for resolving child custody disputes but that “it simply adds child sex-reassignment prescriptions or procedures (which are illegal under the bill) to the kinds of situations where a parent can file an emergency petition with the court.”

Betta said the final decision was up to a judge, but suggested that this law would allow courts to consider gender-affirming health care when modifying custody agreements.